Supreme Court New South Wales Medium Neutral Citation: Babette Nolan (a pseudonym) v Western Sydney Local Health District [2023] NSWSC 671 Hearing dates: 19 June 2023 Decision date: 21 June 2023 Jurisdiction: Common Law Before: Button J Decision: Settlement approved Catchwords: CIVIL PROCEDURE – Application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – Whether proposed settlement is beneficial to the interests of the plaintiff – Settlement approved Legislation Cited: Civil Liability Act 2002 (NSW), s 5O Civil Procedure Act 2005 (NSW), s 76(3) Cases Cited: Dean v Pope [2022] NSWCA 260 Elliot v Diener (1978) 21 ACTR 21 Karvelas (an Infant) v Chikirow (1976) 26 FLR 381 Robinson v Riverina Equestrian Association [2022] NSWSC 1613 Category: Principal judgment Parties: Babette Nolan (a pseudonym) (Plaintiff) Western Sydney Local Health District (Defendant) Representation: Counsel: S Maybury (Plaintiff) R Cheney SC with B Bradley (Defendant) Solicitors: Turner Freeman, Lawyers (Plaintiff) Crown Solicitor's Office (NSW) (Defendant) File Number(s): 2020/253238 Publication restriction: Pseudonyms and redactions on Caselaw to protect privacy of profoundly disabled person under legal incapacity and her family. JUDGMENT Background 1. On [redaction], Mrs Patricia Nolan (a pseudonym) ("the tutor") was a patient at Westmead Hospital. She was heavily pregnant, and the pregnancy was "post mature", giving rise to increased risk. She gave birth by caesarean section at [redaction] on the latter date to her daughter Babette Nolan (a pseudonym) ("the plaintiff"). Tragically, the plaintiff, now [redaction] years of age, suffered a severe brain injury caused by insufficient oxygenated blood to her brain, with the result that she is profoundly disabled, and requires constant and intense care. 2. The plaintiff commenced proceedings in this Court against the Western Sydney Local Health District ("the defendant") on 31 August 2020. A mediation failed, but subsequent settlement negotiations succeeded. The parties are agreed that a very significant sum of money should be paid by the defendant to the plaintiff, the vast bulk of which is directed towards her future care. It is that agreement that I am asked to approve, pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW), as part of my role as Duty Judge. 3. The test is simply whether I am satisfied that the settlement is in the best interests of the plaintiff: see Karvelas (an Infant) v Chikirow (1976) 26 FLR 381 at 382; Elliot v Diener (1978) 21 ACTR 21 at 22; and Robinson v Riverina Equestrian Association [2022] NSWSC 1613 at [5]. Evidence and submissions 1. I was provided with a confidential affidavit from senior counsel for the plaintiff which was, with respect, lucid and extremely helpful. Similarly helpful were the oral submissions of her junior counsel, which provided me with a concise but illuminating overview of the issues more generally. 2. It was explained that the case for the plaintiff has two bases. First, it was said that the heart rate reading of the baby from 10 PM onwards should have been understood to be abnormal from the beginning. The proposition is that there should never have been any thought of an induction of labour; rather, there should have been a caesarean section immediately. 3. In the alternative, there was no monitoring of the heart rate of the baby from 11:45 PM until 2:08 AM. If there had been, it would have been similarly clear that there needed to be much earlier intervention. As things turned out, it was at 2:08 AM that it was appreciated that a caesarean was essential; it was performed at 3 AM (as I have said), but by then severe injury had been occasioned. 4. Counsel submitted that brain injury of the kind under consideration can occur by way of two mechanisms. The first is a lengthy period of insufficient oxygen, with which the body may be able to deal, and which may not have catastrophic consequences. Having said that, things can reach the point of a "watershed moment", whereby such consequences do follow a period of chronic oxygen deprivation. 5. The alternative aetiology is a very rapid brain injury arising from an acute event. It was explained that the latter is the explanation upon which the defendant relies. 6. Focusing in turn on breach of duty, causation, and measure of damages, counsel for the plaintiff explained that it is a matter of reconstructing professional practice as it was over twenty years ago, and discharging the onus on the balance of probabilities that the first limb of the tort of negligence has been established, bearing in mind s 5O of the Civil Liability Act 2002 (NSW) ("the CLA"). 7. He explained that there would be at trial a lively dispute as to whether or not the original heartbeat readings of the baby were, in truth, alarming, as opposed to merely noteworthy or troubling. And he explained – without making the slightest criticism, of course – that at one stage an expert for the plaintiff had tended to agree with an expert for the defendant regarding the latter characterisation. Finally, he reminded me that matters of professional practice – now, as then – may admit of no single correct answer or procedure, and that professional minds may legitimately differ as to appropriate analyses and actions. 8. As for causation, as I have said he explained that, even if breach of duty were established as having occurred at some stage during those hours, the defendant would put forward the thesis that the injuries could have been caused by an acute incident, thereby potentially "breaking the chain" between any established breach of duty and the injuries occasioned. Again, he submitted, there will be an unpredictable controversy about that at any trial. 9. Finally, as for damages, he spoke elliptically, as shall I, because what he explained was based on a part of the confidential affidavit material that is sought to be kept confidential. But his proposition was simply that, in the case of severe injury, many difficult to predict variables can affect quantum, especially when seeking to find the right level of care over a period of many years, and especially when, as here, life expectancy is itself very unpredictable. 10. Separately, placed before me was an affidavit of the tutor, expressing her understanding of the settlement; her appreciation of its advantages and disadvantages; and her intellectual and emotional acceptance of it. I might add that there was not the slightest evidence to suggest that the tutor or the legal team of the plaintiff or indeed anybody else advancing her interests was motivated by any factor other than love and support for her. 11. The final factor that was emphasised was that an outcome at trial whereby the plaintiff failed completely would be another catastrophe. And even if she succeeded, but obtained less than the sum offered by the defendant, there could be, it was said, significantly adverse consequences regarding costs. 12. In short, the submission for the plaintiff was that, taking into account the general unpredictability of litigation, the differences in opinion between well-qualified experts, the particular forensic aspects identified in the confidential advice of senior counsel, the general emotional desirability (if reasonably possible) of avoiding the ordeal of a trial, and finally the difficult questions of assessment of damages, I would be satisfied that this settlement is indeed in the best interests of the plaintiff. 13. Senior counsel for the defendant agreed, remarking only upon the recent decision of Dean v Pope [2022] NSWCA 260 as support for the proposition that it may be that defending matters by way of s 5O of the CLA that have a temporal aspect may have become a little easier for the defendant since the promulgation of that judgment, with the result that the uncertainties attaching to the plaintiff's litigation have been heightened. Approval 1. Turning to my determination, I accept all that was said from the Bar table, and in the confidential advice, on behalf of the plaintiff. Speaking generally, I have had many years' experience of the unpredictability of litigation, and the fact that an allegation that may seem strong or weak when one reads a bundle of papers in Chambers may turn out to be the complete opposite after the giving of oral evidence and, in particular, cross-examination. Furthermore, I accept that this particular claim has its complexities and points of real contention. Finally, the phenomenon of claims assertedly based upon catastrophic injuries not having been established on the balance of probabilities, with the result that no damages whatsoever are awarded, is one with which I am well familiar. 2. I am amply satisfied that settlement of this claim as proposed by both parties is in the best interests of the plaintiff. 3. Separately, I was assured by a Bar table that was patently expert in this area of law that all of the ancillary orders that I was asked to make are in the interests of justice. 4. Finally, I see no harm in this judgment being placed on Caselaw, but I think that there should be some redaction in order to protect the privacy of the plaintiff and her family. I will be guided by the parties about that question before publication. Orders 1. I therefore make the following orders: 1. Pursuant to section 76(3) of the Civil Procedure Act 2005, the Court approves the settlement of this matter on the terms set out in this Short Minutes of Order. BY CONSENT and without admission of liability: 1. Judgment for the plaintiff in the sum of [redaction] plus costs as agreed or assessed (Judgment Sum). 2. The defendant shall be at liberty to deduct and pay from the Judgment Sum any moneys payable or repayable by the plaintiff to any person or body whether in respect of Social Services (Centrelink) or Medicare Benefits or National Disability Insurance Scheme benefits or otherwise concerning which any demand or notice has been or may be served on or given to the defendant and also any moneys paid or payable pursuant to the Social Security Act, Health and Other Services (Compensation) Act 1995, the Health and Other Services (Compensation) Care Charges Act 1995 or the National Disability Insurance Scheme Act 2013. 3. The Court authorises the defendant to deduct from the Judgment Sum the amount $1,072,285.06 in respect of expenses met by the NSW Department of Communities & Justice referred to in its email of 27 February 2023 3:06pm to Dhavni Patel and to pay those monies to the NSW Department of Communities & Justice. 4. Pursuant to s 77(2) of the Civil Procedure Act 2005, the Judgment Sum specified in paragraph 2 less any deductions authorised pursuant to orders 3 and 4 above is to be paid into Court, pending an application by the Tutor to appoint a fund manager over those funds. 5. The plaintiff by her Tutor undertakes and agrees to pay out of the Judgment Sum any moneys payable or repayable by the plaintiff to any person or body whether in respect of Social Services (Centrelink) or pursuant to the Health and Other Services (Compensation) Act 1995 or otherwise which may not have been deducted by the defendant pursuant to paragraph 3 hereof and also to pay to the parties entitled all outstanding medical, hospital, ambulance and other out of pocket expenses. 6. No interest shall be payable on the judgment herein if said be paid within 28 days after: 1. an order of the Court approving these Terms of Settlement; or 2. an order of the Court directing where the judgment is to be paid; or 3. receipt of Consent Judgment/Orders sealed by the Court approving settlement and directing payment of the judgment to any person; or 4. receipt by the defendant of a notice concerning any charge repayable to the Department of Social Security (Centrelink); or 5. receipt by the defendant of a notice from the Managing Director of Medicare Australia under Section 24 or 25 of the Health and Other Services (Compensation) Act 1995; or 6. if the defendant has been notified that there are moneys owing to the National Disability Insurance Agency (NDIA), a Recovery Notice from NDIA informing it of the amount of the payback; or 7. if the defendant has been notified of any moneys repayable to any other person or body, receipt by the defendant of account details necessary to make that repayment; or 8. if payment is ordered to the NSW Trustee and Guardian receipt of electronic funds transfer account number from the NSW Trustee and Guardian. whichever is the later. 1. No interest shall be payable on the costs of these proceedings as agreed or assessed referred to in paragraph 2 above if the said costs are paid within 28 days of: 1. (a) the date on which the said costs have been agreed to by the parties; or (b) receipt by the defendant of a Certificate as to Determination of costs pursuant to s.70 Legal Profession Uniform Law Application Act 2014 following assessment of costs; (c) within 28 days after the receipt of an Authority to Receive satisfactory to the defendant, whichever is the later. 1. The plaintiff by her Tutor acknowledges that in accordance with Section 22 of the Health and Other Services (Compensation) Act 1995, the plaintiff has been informed of a possible liability to pay amounts under the said Act or under the Health and Other Services (Compensation) Care Charges Act 1995. 2. The plaintiff by her Tutor acknowledges that the defendant has elected to exercise its right to make a 10% advance payment to Medicare Australia and to pay the balance of the judgment amount to the plaintiff. 3. These Terms not to be disclosed other than as necessary: 1. to fulfil the requirements of the Health and Other Services (Compensation) Act 1995 and Centrelink and/or; 2. for the defendant to seek to recover from any party person or body, in whole or in part, amounts paid to the plaintiff pursuant to these Terms and/or; 3. as required by law. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2023